eNotes: Liability – June 2019
May 30, 2019
Super Lawyers at TT&H
We are proud to announce that a number of our attorneys received recognition in the most recent Super Lawyers issue.
James J. Dodd-o; Daniel L. Grill; Jeanette H. Ho; Edward H. Jordan, Jr.; Louis C. Long; R. Burke McLemore, Jr.; Paul A. Pauciulo; Mark J. Powell; Peter J. Speaker; James F. Swartz, III
Super Lawyers “Rising Stars”
Matthew R. Clayberger; Bernard T. Kwitowski; A. Catherine McLaughlin; Christopher L. Scott
TT&H LAWYERS IN COURT
Hugh O’Neill wins summary judgment in premises liability action claiming permanent disability.
On May 15, 2019, Attorney Hugh O’Neill of TT&H’s Harrisburg office won summary judgment in connection with a fall that occurred on the premises of a Juniata County animal husbandry business. The Plaintiff claimed that she fell due to a depressed area in the facility’s parking lot. In his Motion for summary judgment, Hugh argued that the defect in the parking lot was de minimis and open and obvious. In granting summary judgment, the Court held that the defect was not “patently dangerous” and not so “large and unusual as to appear dangerous to the ordinary pedestrian.” Thus, the defect was deemed trivial and de minimis. Moreover, the Plaintiff admitted that there was no debris or weather-related issues that obstructed her view of the defect. Therefore, the Court also found that the alleged defect was open and obvious. As a result of the fall, Plaintiff claimed that she needed to undergo multiple surgeries and was permanently disabled.
Questions about this case can be directed to Hugh O’Neill, at (717) 255-7629 or firstname.lastname@example.org.
PA CLIENT ADVISORY
Superior Court withdraws opinion in the case of Marshall v. Brown’s IA, LLC.
On March 27, 2019, the Superior Court issued a published opinion in the matter of Marshall v. Brown’s IA, LLC, 2019 Pa. Super. 94, 2019 Pa. Super. LEXIS 279 (Pa. Super. Ct. Mar. 27, 2019). The opinion, which was summarized in our April 2019 Liability eNotes, addressed the adverse consequences of failing to preserve requested video footage. Recently, however, the Superior Court withdrew the opinion after granting re-argument. We will provide a further update after a decision is reached following re-argument by the panel.
Questions about this advisory can be directed to Rebecca Sember-Izsak, at (412) 926-1446 or email@example.com.
SIGNIFICANT CASE SUMMARIES
FEDERAL CASE SUMMARIES
Grande v. Starbucks Corp.
United States District Court for the Eastern District of Pennsylvania
No. 18-04036, 2019 U.S. Dist. LEXIS 56292
Decided: April 1, 2019
A pro se Plaintiff’s generalized complaint was dismissed because it lacked the requisite specificity to put defendants on notice of the claims against them.
Plaintiff filed a complaint against Starbucks Corp, Starbucks’ former Executive Chairman, and property owners of two different store locations in Philadelphia. The Complaint included allegations that Starbucks employees mistreated him in the following ways: overcharging him and not giving him receipts; sitting close to him to threaten or intimidate him; fraudulently promising stores would be safe and clean when in fact they were dirty and cleaned with toxic cleaners; publicly humiliating him by kicking him out of their stores; invading his privacy; making him sick from their coffee; harassing him for using their restrooms; calling the police on him for no reason; seizing his personal data; and using his surname in their products without compensation.
Defendants filed motions to dismiss the Complaint for failing to state a claim for which relief can be granted. Defendants argued that Plaintiff’s allegations spanned over a period of nine years and that he failed to include specific occurrences at each store so as to allow the Defendants the opportunity to raise relevant defenses.
The Complaint was dismissed, without prejudice, because the allegations are raised generally, without identifying the particular conduct each Defendant is alleged to have committed against Plaintiff. While the Court was reluctant to dismiss the Complaint as a “shot gun” complaint, because pro se litigants are held to less stringent standards than trained counsel, the Complaint lacked the requisite specificity to put Defendants on notice of the claims against them. Additionally, because Plaintiff’s claims are grounded in fraud, he must “‘plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation.’ . . . Likewise, [Plaintiff] should ensure that his other claims-whether for defamation, invasion of privacy, tortious interference, or any other cause of action-include the necessary elements of each cause of action . . . .”
Questions about this case can be directed to Chloe Gartside, at (215) 564-2928 or firstname.lastname@example.org.
Rosenthal v. Am. States Ins. Co.
United States District Court for the Middle District of Pennsylvania
No. 1:18-cv-01755, 2019 U.S. Dist. LEXIS 50485, 2019 WL 1354141
Decided: March 26, 2019
Court dismisses bad faith count as factually insufficient in UIM action, where insured demanded policy limits of $1 Million and insurer waited 7 months to offer $107,012 for Complex Regional Pain Syndrome claim and challenged the relatedness of the surgery on her shoulder, despite paying her first party medical and wage loss benefits for those injuries.
Insured was injured in a motor vehicle accident when another car suddenly accelerated in reverse, at a stop light, and struck the insured. Her injuries included surgery to her shoulder and Complex Regional Pain Syndrome in her hand and arm. After her insurer consented to her settlement with the third party tortfeasor, and the insurer waived its right of subrogation, the insured demanded the policy limits of $1 Million. Seven months later, the insurer made an offer of $107,012 asserting that the shoulder injury was not caused by the subject accident. Three months later, the insured filed her multi-count Complaint in Dauphin County.
After the action was removed to Federal Court, the insurer filed a motion to dismiss the Count for Bad Faith and argued that this Count failed to set forth “sufficient factual matter” to show that the claim was facially plausible pursuant to the “more heightened form of pleadings” set forth in recent U. S. Supreme Court opinions. The insured alleged that the insurer refused to negotiate a reasonable settlement and failed to provide her with any expert medical opinions, peer-review reports, record reports, or expert reports to support the insurer’s offer of $107,012, and its assertion that her shoulder injury and subsequent surgery was not causally related to the accident. The insured alleged that her insurer never contested or delayed payment of her first party medical and wage loss benefits that included her initial shoulder injury. Further, the insured alleged she cooperated with her insurer in signing record authorizations and providing a recorded statement.
After a thorough recitation of the law concerning pleadings in Federal Court and, then, Pennsylvania’s legal standards for bad faith, including the requirement that “the [insured] must present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis[,]” the Court held that the insured failed to allege facts that would support a plausible inference that the insurer’s actions in investigating and evaluating the insured’s claims were unreasonable. In addition, the Court held that the insured failed to allege facts to support her claim that the insurer knew or recklessly disregarded its lack of a reasonable basis in offering a settlement. Essentially, the insured’s allegations were nothing more than boiler-plate language and conclusory statements lifted from the case law without any facts to support them. More important, the Court acknowledged that “Pennsylvania law generally does not treat as bad faith an insurer’s low but reasonable estimate of an insured’s loss.” Here, the Complaint did not allege “facts from which a factfinder could plausibly conclude that [insurer’s] offer was unreasonable . . . ‘rather than made as part of the ordinary course of negotiations . . . .’” Finally, the Court opined that the 7 month delay, in itself, was not evidence of bad faith and neither was the large difference between the insured’s demand and the insurer’s offer, i.e., $892,988. The Court granted the insurer’s motion to dismiss the claim for bad faith, and the insured was granted 30 days to file an amended complaint.
Questions about this case can be directed to Joe Holko, at (610) 332-7005 or email@example.com.
Watson v. Boston Mkt. Corp.
United States District Court for the Eastern District of Pennsylvania
Decided: March 22, 2019
Court grants Motion for Summary Judgment, finding that Plaintiff failed to prove Defendant had actual or constructive notice of the alleged dangerous condition.
Plaintiff slipped and fell in the restroom of Defendant’s restaurant. Prior to the fall, Plaintiff had not noticed anything on the ground. After falling and while lying on the ground, she looked up and saw water dripping from the ceiling light along with stains on the ceiling next to the light. The restaurant manager testified that the restrooms are inspected hourly and that the restroom at issue had been inspected five minutes prior to the fall. The manager also testified that she did not recall water ever dripping from the restroom ceiling.
Defendant filed a Motion for Summary Judgment, arguing that Plaintiff failed to produce evidence that Defendant created the harmful condition or that Defendant had actual or constructive notice of the condition.
The Court granted Defendant’s Motion for Summary Judgment. The Court found that Defendant did not have actual notice, as there was no evidence that Defendant knew of the water on the floor or that the ceiling had leaked on previous occasions. The Court likewise found that Plaintiff failed to adduce evidence demonstrating that Defendant had constructive notice, as there was nothing in the record establishing how long the water had been present. The jury would be left to speculate regarding the time the water had been on the floor.
Questions about this case can be directed to Jillian Denicola, at (570) 820-0240 or firstname.lastname@example.org.
PENNSYLVANIA CASE SUMMARIES
Kaminski v. Sosmetal Prods.
Pennsylvania Commonwealth Court
No. 1872 C.D. 2017
Decided: April 4, 2019
Trial Court properly identified a pedestrian walking on a public sidewalk as a licensee of the property owner.
Plaintiff alleged that she was walking on a public sidewalk abutting Defendant’s property, when due to a ridge between two sections of the pavement, she tripped, fell and suffered injury. Defendant admitted that it occupied the property abutting the sidewalk and was responsible for maintenance of the sidewalk. At trial, Plaintiff requested Pennsylvania Suggested Standard Jury Instruction (Pa. SSJI (Civ) 18.80 (2011), but objected to Pa. SSJI (Civ) 18.00, relating to the owner/occupiers’ general duty of care, and PA. SSJI (Civ) 18.50, relating to the owner/occupier’s general duty of care owed to a licensee. During deliberations, the jury asked the Court to define the “three parts” of negligence and whether all three were required for a finding of negligence.
The jury returned a verdict in favor of the Defendant/occupier. On appeal, Plaintiff argued that Pa. SSJI (Civ) 18.80 was the only correct instruction because it specifically applies to sidewalks and the abutting owner/occupier’s duty of care and that where an individual uses a public sidewalk, permissive use is not at issue and the individual is not a licensee. Plaintiff contended that the inclusion of Pa. SSJI (Civ) 18.00 and 18.50 tended to mislead and confuse the jury, as evidenced by the jury’s question relating to the “three parts” of negligence.
In affirming the Trial Court, the Commonwealth Court noted that Pennsylvania case law had established that a pedestrian walking on a public sidewalk is a licensee of the property owner. The Court noted that Comment h(1) of Restatement Section 330 identifies licensees as those “whose presence upon the land is solely for his own purposes, in which the possessor has no interest, and to whom the privilege of entering is extended as a mere personal favor to the individual, whether by express or tacit consent or as a matter of general or local custom.” The Court also looked to the Subcommittee Note to Pa. SSJI (Civ) 18.50, which defines a gratuitous licensee as a person permitted to enter upon land of another solely for his or her own purposes. Finally, the Court ruled that the use of Pa. SSJI (Civ) 18.80, without the use of Pa. SSJI (Civ) 18.00 and 18.50, would not have fully explained the Defendant’s duty with respect to the Plaintiff’s use of the public sidewalk.
Questions about this case can be directed to James Swartz, III, at (610) 332-7028 or email@example.com.
DiPasquale v. Modell’s PA II, Inc.
Pennsylvania Superior Court
No. 3261 EDA 2017
Decided: May 2, 2019
Plaintiff sufficiently established that store had notice of defective shelf.
Plaintiff was injured when a thirty pound dumbbell fell off a shelf attached to the checkout counter and landed on his foot. Photographic and video evidence taken after the incident revealed that the shelf was loose, chipped and tilted away from the counter. Following a non-jury trial, finding in favor of Plaintiff, the store appealed and argued that Plaintiff had not established that the store had notice of the “defective” shelf.
Highlighting the difference from that of a transitory spill, the Court noted that constructive notice of a defect with an inherently sustained duration does not require positive testimony of how long the defect existed if a witness saw the defect immediately before or after the incident. In light of the instability of the shelf and the video surveillance showing the dumbbell falling without being touched by anyone, the Court found that the record was sufficient to establish that the store had constructive notice of the “defective” shelf.
Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or firstname.lastname@example.org.
Norman v. Temple Univ. Health Sys.
Pennsylvania Superior Court
2019 Pa. Super. 135
Decided: April 29, 2019
A pro se individual, acting as administrator of his mother’s estate, could not represent the estate in a personal injury action arising out of his mother’s death.
Plaintiff’s mother was taken to Temple University Hospital for emphysema-related complications. She died the following day, and Plaintiff was appointed as administrator of the estate. Plaintiff claimed that his mother’s death was the result of negligence and fraud on the part of Temple University Hospital employees. He attempted, unsuccessfully, to find an attorney to pursue those claims.
Unable to find a lawyer, Plaintiff filed a pro se Complaint against ten Defendants affiliated with the Hospital. Defendants all moved to dismiss on the basis that Plaintiff could not represent his mother’s estate pro se. The Trial Court agreed and gave Plaintiff several months in which to find an attorney. Plaintiff was unable to do so, and the Trial Court dismissed the lawsuit. On appeal, Plaintiff argued that he should have been able to represent the estate because he was the administrator and under the First Amendment he had a right to seek redress of grievances.
The Superior Court affirmed the Trial Court’s decision. While an individual has a right to represent himself pro se in a legal proceeding, a non-lawyer cannot represent another individual in a legal proceeding, as that would constitute the unauthorized practice of law. Since Plaintiff was not a lawyer, he could not attempt to pursue the estate’s legal claims, regardless of whether he was administrator of the estate. The Superior Court rejected Plaintiff’s Constitutional claim on the basis that he failed to present a developed argument to the Court on this issue.
Questions about this case can be directed to Matt Clayberger, at (717) 237-7150 or email@example.com.
Wright v. Residence Inn
Pennsylvania Superior Court
2019 Pa. Super. 110
Decided: April 9, 2019
Although Plaintiff was awarded $64,000 in damages by a Philadelphia jury in a slip-and-fall case against Residence Inn, the Superior Court held Plaintiff was prejudiced by his inability to submit testimony by an internal medicine physician regarding orthopedic injuries.
Plaintiff injured his left shoulder and hip when he slipped and fell on a patch of ice on a walkway outside of the Residence Inn in Horsham, Pennsylvania. Plaintiff eventually underwent an arthroscopic surgery on his shoulder to repair an internal derangement. Plaintiff intended on calling an internal medicine physician to testify regarding the nature and cause of Plaintiff’s injuries as well as the subsequent treatment. However, on the eve of trial, the defense filed a motion in limine to exclude the testimony. The Trial Court found that Plaintiff’s expert was unqualified because he was not an orthopedist and barred all the doctor’s testimony with the exception of testimony regarding Plaintiff’s medical bills.
Despite the exclusion of this expert testimony, the jury ultimately entered a verdict against Residence Inn, awarding $8,896.44 in medical expenses and $55,000.00 for non-economic damages. Plaintiff appealed, arguing that he was prejudiced by the exclusion of the expert testimony and that the award should have been higher.
The Superior Court found that the Trial Court misapplied the standard for admitting expert testimony. As Plaintiff’s expert had “dealt with patients in his practice who [had] orthopedic or shoulder-type injuries” he therefore “possessed a reasonable pretension to specialized knowledge regarding the [Plaintiff’s] medical issues sufficient to assist the trier of fact.” The Superior Court reasoned that although an orthopedist may be more qualified, Plaintiff’s expert was not totally unqualified to serve as an expert on causation and damages. Although Plaintiff was successful with his claim, he did not get a fair trial on damages due to the preclusion of this expert testimony. Without this expert testimony, Plaintiff could not offer a credible medical perspective, as Plaintiff did not have any medical training or knowledge. As such, his testimony was limited to his “personal experience – what happened, how he felt, and the treatments he received.” Plaintiff was granted a new trial to “present a full and fair case on the question of damages.”
Questions about this case can be directed to John Lucy, at (717) 441-7067 or firstname.lastname@example.org.
MARYLAND CASE SUMMARY
Gallagher v. Mercy Med. Ctr., Inc.
Maryland Court of Appeals
No. 44, September Term, 2018
Decided: April 29, 2019
The one satisfaction rule establishes that a plaintiff is entitled to one compensation for a loss, and satisfaction of the claim prevents the plaintiff from pursing another who may be liable for the same damages.
Plaintiff was injured as the result of an automobile accident. She underwent two reconstructive breast surgeries at Mercy Medical Center. Due to an infection that she developed, she received antibiotics through a Peripherally Inserted Central Catheter (“PICC line”). While the PICC line was being inserted into her left arm, it punctured her brachial artery, requiring vascular surgery to repair. The Plaintiff filed an action against the driver of the vehicle in the accident, as well as against her own uninsured/underinsured motorist carrier. She settled her claims against the driver and signed a Release. Plaintiff pursued her breach of contract claim against her uninsured/underinsured motorist carrier for the same injuries she settled against the driver. She settled that suit for $125,000.00, placed the settlement on the trial record, and the trial judge ordered the case settled and dismissed with prejudice.
Ten months later, Plaintiff filed a medical malpractice complaint against the Mercy Hospital. Mercy filed a Motion for Summary Judgment, arguing that the Plaintiff’s claim was barred by the one satisfaction rule. The Trial Court found that the Plaintiff already recovered for her injuries as part of her settlement with her uninsured/underinsured motorists carrier and granted the Defendant’s motion.
The Court of Appeals affirmed, citing the One Satisfaction Rule. The Court explained that, under the rule, Plaintiff’s settlement with her uninsured/underinsured motorist carrier included all the injuries that she claimed in her medical malpractice action against Defendant Mercy. In other words, because Plaintiff sought recovery from Mercy for the same damages she sought against her uninsured/underinsured motorist carrier, her claim was barred by the One Satisfaction Rule.
Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or email@example.com.
NEW JERSEY CASE SUMMARIES
Cortes v. Garrard Constr. Group
New Jersey Superior Court, Appellate Division
No. A-4375-17T1, 2019 N.J. Super. Unpub. LEXIS 1094
Decided: May 14, 2019
A landowner may be liable for harm to child trespassers caused by an artificial condition if the possessor “has reason to know” that children are likely to trespass.
Plaintiff Alexander S. Cortes and his friend, both sixteen-years old, trespassed onto a construction site located in a shopping center and took turns operating a forklift at the site. While his friend was driving the forklift, Alex attempted to jump off, and his right leg was caught and then crushed between the forklift and a pillar, resulting in serious injuries. Alex, by and through his parents, sued a number of Defendants, including the general contractor (Garrard), and the contractor hired to preform surrounding site work (H&H). Plaintiffs claimed these Defendants failed to exercise due care in controlling the construction site by insufficiently securing the site against unauthorized entry.
The Trial Court granted summary judgment for Defendant, concluding that Plaintiff had failed to establish that Defendants knew, or had reason to know, that minors were likely to trespass onto the construction site, as required under § 339(a) of the Restatement (Second) of Torts (Restatement), which governs “Artificial Conditions Highly Dangerous to Trespassing Children.”
The Appellate Division reversed and remanded, holding that the Trial Court had misapplied the “reason to know” standard and that genuine and material factual questions existed as to whether both Garrard and H&H had “reason to know” that children would trespass at the site. With respect to Garrard, the Court determined that a reasonable factfinder could conclude that the area was insufficiently secured to prevent minors from entering the construction site. As for H&H, the Court concluded that the company was aware that the site was located in an open and active shopping center.
Questions about this case can be directed to Charles Skriner, at (908) 574-0513 or firstname.lastname@example.org.
Mastrangelo v. Verizon, N.J., Inc.
New Jersey Superior Court, Appellate Division
2019 N.J. Super. Unpub. Lexis 873
Decided: April 15, 2019
A landlord is insulated from tort liability arising from the maintenance of property where an executed lease exists in which the tenant retains control of the inspection, repair and maintenance over the subject property.
Since 2005, Defendant Sunil Khanna, M.D. d/b/a Metuchen Cardiology leased an office building from the property owner, Defendant Khanna Realty. Defendant Khanna Realty was solely owned by Dr. Sunil Khanna. The lease provided that Metuchen Cardiology, who was the sole tenant and occupied the entire structure, lease the property “as is” and “take good care of the Premises and . . . maintain them in good condition and state of repair.” The lease gave Khanna Realty no duty or control with respect to the inspection, repair, or maintenance of the leased premises. Further, Khanna Realty was not responsible for any damage to any person arising from any defect in the building.
On January 28, 2015, Defendant Verizon’s employee arrived at the building to inspect equipment in the basement which was accessible by a hatch in the floor of the kitchen area. The hatch was present at the time Khanna Realty purchased the property, apart from changing the tiles on the door covering the hatch to match nearby flooring, no changes were made to the hatch by Khanna Realty. After Defendant Verizon’s employee removed the door to the hatch, Plaintiff Mary Mastrangelo, a receptionist for Metuchen Cardiology walked into the kitchen, stepped into the hatch and fell to the basement sustaining multiple injuries.
Plaintiff Mastrangelo filed suit against Verizon for their employee’s negligence and Dr. Sunil Khanna d/b/a Metuchen Cardiology and Khanna Realty for negligent repair, service or maintenance of the hatch. Defendant Khanna Realty filed a Motion for Summary Judgment pursuant to the lease arguing it had no duty to inspect, repair or maintain the building and therefore owed no duty to the Plaintiff. In opposition, Plaintiff argued that Dr. Khanna’s common ownership of Khanna Realty and Metuchen Cardiology negated the lease provisions insulating the landlord and that the hatch was a design defect Khanna Realty had a duty to repair regardless of the lease.
The Trial Court granted Defendant Khanna Realty’s motion finding that Khanna Realty and Metuchen Cardiology were distinct entities that executed a lease with an effective delegation of duties between landlord and tenant in which the tenant retained control of the premises. Additionally, the Trial Court found Plaintiff’s argument that the hatch was a structural design defect to be a “bare conclusion made without any credible support.” Plaintiff appealed the ruling arguing the Trial Court erred in the interpretation of the lease and overlooking Plaintiff’s expert report which opined that the hatch was defectively designed and violated building codes.
The Appellate Court affirmed and stated that the record supported the Trial Court’s determination that Khanna Realty had no duty to inspect, repair or maintain the building at which Plaintiff was injured. The lease, which delegated those responsibilities to Metuchen Cardiology, was a valid contract between distinct entities and the tenant took full control of the premises. With respect to the hatch, the Appellate Court found that even if the Plaintiff could prove through expert testimony that the hatch was defectively designed, Khanna Realty would not have had a duty to undertake repairs.
Questions about this case can be directed to Paraskevoula Mamounas, at (610) 332-7029 or email@example.com.
DC CASE SUMMARY
Owens v. Republic of Sudan
United States Court of Appeals for the District of Columbia Circuit
Decided: May 21, 2019
D.C. Circuit rejects Sudanese government challenge to application of D.C. state law exception to the presence requirement for IIED claims against state sponsors of terrorism.
These appeals involve lawsuits brought against the Sudanese government by plaintiffs who lost family members in the August 7, 1998 al Qaeda terrorist bombings outside of U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. The plaintiffs made D.C. state-law claims against Sudan for intentional infliction of emotional distress (IIED) under the “terrorism exception” to the Foreign Sovereign Immunities Act. The District Court had entered default judgments, which Sudan then moved to vacate and appealed to the U.S. Court of Appeals for the D.C. Circuit. While the appeals were stayed, the D.C. Court of Appeals held that D.C. law generally requires a plaintiff’s physical presence at the scene of outrageous or extreme conduct in order to recover damages for IIED, but held that presence is not required where such claims are brought against state sponsors of terrorism arising from a terrorist attack.
In light of the D.C. Court of Appeals’ holding, Sudan asked the Court of Appeals for the D.C. Circuit not to apply D.C. law regarding the exception to the presence requirement. Sudan argued that the exception to the presence requirement (1) encroaches upon federal foreign affairs powers; (2) violates the “non-discrimination principle” under FSIA that a foreign state is liable “to the same extent as a private individual under like circumstances”; and (3) would retroactively increase Sudan’s liability for past conduct.
The D.C. Circuit rejected each of Sudan’s arguments and affirmed the default judgments. The D.C. Circuit held that Sudan’s arguments were based on the improper assumption that the D.C. Court of Appeals’ newly-crafted exception treats state actors differently than non-state actors. Instead, the D.C. Circuit agreed with the plaintiffs that the D.C. Court of Appeals was “reasoning by reference to the facts of the case before it,” and observed that the D.C. Court of Appeals’ reasoning for carving out an exception to the presence requirement supported applying the exception to non-state actors as well. By way of example, the D.C. Circuit explained that it would also expect the D.C. Court of Appeals to extend the exception to the presence requirement to claims brought against non-state actors, such as al-Qaeda. The default judgments were affirmed.
Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or firstname.lastname@example.org.
VIRGINIA CASE SUMMARY
James River Ins. Co. v. Doswell Truck Stop, LLC
Virginia Supreme Court
2019 Va. LEXIS 44
Decided: May 16, 2019
The term “maintenance” as used in an exclusion was not ambiguous; therefore, insurer did not owe a duty to defend or indemnify.
Plaintiff Doswell Truck Stop owned a truck stop that included a gas station, convenience store, hotel, and garage/truck wash. Defendant James River Insurance Company insured Doswell pursuant to a general liability policy with an Absolute Auto, Aircraft and Watercraft Exclusion endorsement that excluded coverage for bodily injury and property damage arising out of the “maintenance” of any auto. A customer brought his tractor-trailer to Doswell’s garage to have a tire repaired. While the customer was in the garage, one of Doswell’s employees overinflated the tire, causing it to explode and injure the customer. James River denied coverage against Doswell, relying on the Absolute Auto, Aircraft, and Watercraft Exclusion.
Doswell filed a declaratory judgment action seeking a determination of whether there was coverage under the policy. Doswell asserted that there were two potential meanings for the word “maintenance”: (1) regular repair operations; and (2) a possessory interest other than ownership or use. The Trial Court granted Doswell’s Motion for Summary Judgment, finding that the term “maintenance” was ambiguous. James River appealed.
In determining whether a term in an insurance policy is ambiguous, a court must look at the term in the context of the entire contract, not in isolation. A review of the policy at issue demonstrated that only one of the two suggested definitions of “maintenance” could possibly apply; regular repair operations. Thus, the term was not ambiguous. The Absolute Auto, Aircraft and Watercraft Exclusion precluded coverage for the claim made by Doswell’s customer; therefore, James River had neither a duty to indemnify or defend.
Questions about this case can be directed to Lacey Conn, at (202) 945-9502 or email@example.com.